State of Minnesota, Respondent, vs. Annette Naomi Robinson, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

In Re the Marriage of:
Rebecca J. Englund, n/k/a
Rebecca J. Peterson, petitioner,
Respondent,

vs.

Reid A. Englund,
Appellant.

Ramsey County District Court
File No. F48930738

Harold R. Wingerd, 1712 Firststar Center, 101 East Fifth Street, St. Paul, MN 55101 (for respondent)

Mark A. Gray, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408-2656 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.

Appellant Reid Englund challenges the district court's failure to appoint an independent appraiser to assess the value of his lien, denial of his request for child support, and award of attorney fees to respondent. Because the district court was not required to appoint an appraiser, and the resolution of the child support and attorney fees issues was reasonable, we affirm.

Appellant Reid Englund and respondent Rebecca Englund divorced in 1990. Respondent was awarded joint legal and physical custody of the two minor children, $150 per month in child support, and the marital homestead subject to appellant's lien on one-half of the net equity in the home. Appellant failed to pay any child support after January 1, 1991. In May 1998, respondent brought a motion seeking: (1) an increase in child support, (2) payment of $13,350 in child support arrears, and (3) $950 in attorney fees. Respondent brought a motion seeking full custody of the youngest child, S.A.E., and modification of child support.

On June 23, 1998, the district court awarded respondent $12,500 in child support arrears and ordered that the $12,500 be set off against appellant's lien. The district court allowed S.A.E. to temporarily change residence to his father's home, and reserved appellant's motion for child support. Approximately six months later, S.A.E. moved back to his mother's home and in March 1999, respondent was awarded full legal and physical custody of S.A.E.

In June 1999, the court increased appellant's child support obligation from $150 to $585.20 per month, denied appellant's motion for child support, and ordered appellant to pay respondent $6,400 in attorney fees. The court subtracted the child support arrears and the attorney fees judgment from appellant's lien.

Appellant now challenges the district court's judgment, claiming that the district court erred in: (1) not appointing an independent appraiser to assess the value of his lien; (2) denying his request for child support; and (3) awarding respondent attorney fees in excess of the amount she requested.

I.

Appellant claims that the district court erred in accepting respondent's appraisal of the value of the property for the purpose of determining the value of his lien. Appellant asserts that the parties' marital termination agreement (MTA) required the district court to appoint an independent appraiser to evaluate the value of the property. The MTA states that if

the parties are unable to agree upon the market value of the real estate * * * either party may apply to the Ramsey County Family Court Judge to appoint an independent appraiser.

According to the MTA, the district court could appoint an independent appraiser if one of the parties so requested. Appellant admits that he did not make a request. Further, appellant admits that he did not contest respondent's expert's evaluation nor provide his own estimate. The district court did not err in not sua sponte appointing an independent appraiser because appellant never invoked the MTA provision, submitted his own estimate, or objected to respondent's estimate.

II.

Appellant also challenges the district court's denial of his request to modify child support. This court will not reverse the district court's decision on child support unless the court's decision is an abuse of its broad discretion. Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999). When a party moves to modify a child support award, the district court must first determine whether a change in circumstances justifies modification of the existing award. Minn. Stat. § 518.64, subd. 2(a) (1998).

Other than appellant's request for "just and fair" child support, the record is devoid of any legal argument or documentation supporting appellant's request for child support. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating "assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection"). Appellant requests that respondent pay child support for the five-and-one-half months that S.A.E was in his care even though he has failed to pay any child support since 1991. The district court's denial of appellant's motion for child support equitably resolved the child support issue. Appellant's child support obligation never increased beyond the original $150 support level established in 1990. The district court increased appellant's child support obligation to $585.20 per month, but made the effective date December 1, 1998, recognizing that appellant cared for S.A.E. for the preceeding five-and-one-half months. Further, the district court's resolution of the child support issue was fair and equitable because respondent continued to incur over $1,800 in unreimbursed child-care costs for the five-and-one-half months that S.A.E. lived with appellant.

Based on appellant's lack of legal support for a modification of child support and the court's equitable resolution of the child support issue, the district court did not err in denying appellant's motion.

III.

Appellant also challenges the district court's award of $6,400 in attorney fees to respondent. This court will not disturb the district court's award of attorney fees absent an abuse of discretion. Ed Herman & Sons v. Russell, 535 N.W.2d 803, 808 (Minn. 1995). The district court, in its discretion, may award attorney fees against a party who unreasonably contributes to the length or expense of the proceeding. Minn. Stat. § 518.14, subd. 1 (1998). The district court may also award attorney fees as a result of the refusal to comply with court orders. Burton v. Burton, 365 N.W.2d 310, 312 (Minn. App. 1985), review denied (Minn. May 31, 1985).

Although the district court resolved the child support arrears issue in the June 23, 1998 order, issues involving payment of the arrears and child support modification were still pending in April 1999. Respondent submitted extensive documents to the court on the unresolved financial issues, including her income statements, the calculation of the lien interest, and an itemization of the $9,000 she incurred in attorney fees. In contrast, appellant failed to cooperate with the court. Despite repeated requests, appellant failed to provide the court with his financial information for a period of 14 months, thus significantly delaying the resolution of child support issues. Although respondent originally requested only $950 in attorney fees, the court's award of $6,400 represents approximately a one-third reduction of the fees that respondent incurred over months of prolonged litigation. The $6,400 amount is reasonable in light of the lengthy proceedings and appellant's failure to cooperate. The district court did not err in awarding respondent $6,400 in attorney fees.